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17 posts from June 2011

Thursday, June 30, 2011

Legislation to Overturn Voss v. Tranquilino Decision Introduced

NJLRA issued the following statement regarding A-4228, which would prohibit drunken drivers from suing restaurateurs for injuries they sustain while driving under the influence of alcohol:

"The New Jersey Supreme Court's decision in Voss v. Tranquilino allows a convicted drunk driver to use our court system to profit from the poor choices he made, at the expense of New Jersey's business community.  Common sense is being downgraded to the point where drunk drivers can relinquish personal responsibility by collecting monetary damages from the restaurateur serving them drinks. 

"This decision was a kick in the gut to New Jersey's restaurateurs.  A-4228 is a first step toward protecting our business community from the Supreme Court's misinterpretation of the law. 

"The Court clearly defied the will of the legislature when issuing this decision, and I encourage leadership in both houses to consider A-4228 as soon as possible. 

The case stems from a 2006 incident in which Fredrick Voss crashed his motorcycle into a car and injured himself.  His blood alcohol level was nearly two-and-a-half times the legal limit.  He pled guilty to a DWI charge but later filed suit against Tiffany's Restaurant in Toms River under the Dram Shop Act.     The New Jersey Supreme Court sided with Voss in a 5-2 decision, stating that existing law does not explicitly bar drunken drivers for suing for their own injuries. 

The legislation is sponsored by Assemblyman John Amodeo (R- Atlantic County). 

Wednesday, June 29, 2011

A sedentary lifestyle kills. But you might have a workers' comp claim if your job makes you lethargic.

A desk job might be lucrative to some, especially the unemployed.  But if you’ve been lethargic or sedentary for a while, you might have a worker’s compensation claim, according to a New Jersey appellate court. 

And with so many employees working sedentary desk jobs, this decision can have an enormous impact on New Jersey’s businesses.

In this case, she may have had a sedentary lifestyle, weighed more than 300 lbs, had an enlarged heart, and recently begun taking birth control pills, but the husband of Cathleen Renner said that it was her job that killed her.  Renner, a 25 year-employee of AT&T, died from a blood clot that formed in her leg and lodged in her lung.  According to an AP report, she had been working overnight in her home office to finish a project for the company the night before.   Her doctors say the clot likely developed during the time when she was working overnight in her home office.  And that means it’s her job’s fault. 

“Sitting at your desk is a risk in and of itself,” said Patrick Caulfield, the attorney representing Renner’s husband.  “It seems to be the No. 1 risk factor.” 

Of course, that’s a risk many of the nearly one-in-ten unemployed New Jerseyans would be all too happy to assume. 

The Court acknowledged that Renner “led a sedentary life in and out of work,” but she was “even less active when behind her desk.”  Well, um, yeah.  Just like you’re less active when you’re sitting in a car than running a marathon. 

AT&T was mum on whether it would appeal the decision to the State Supreme Court.  If AT&T appeals and loses, the Court may be paving the way for a litany of workers’ compensation claims – and a higher unemployment rate. 

Tuesday, June 28, 2011

Patterson nomination confirmed by the Senate

Anne Patterson’s nomination to the New Jersey Supreme Court was approved late last night by the Senate, by a vote of 36-0

Senators Madden and Lesniak abstained, while Senator Stack was not present at the time the vote was recorded.  Senator Ciesla was absent. 

Patterson will assume the seat being vacated by Justice Roberto Rivera-Soto this fall.   

Friday, June 24, 2011

Fox booze pic

Thursday, June 23, 2011

ILR: Lawsuit Reform Has Helped Fuel Texas' Job Creation Machine

Dallas Federal Reserve President Richard Fisher discusses how important tort reform has been to Texas' incredible jobs recovery:

Richard Fisher

Wednesday, June 22, 2011

The Wal-Mart decision’s impact on future class actions

The 5- 4 decision handed down by the U.S. Supreme Court in Wal-Mart v. Dukes, et al. is likely to impact the size of class action lawsuits going forward. 

The issues are real, but from the beginning, the case was a stretch: a class action lawsuit against Wal-Mart on behalf of its 1.6 million female employees in the United States since 1998.  One-hundred twenty of these plaintiffs are named, many of whom give hard-to-dispute examples of gender based discrimination:

  • When a female employee with five years at Wal-Mart and a Master's Degree asked her department manager why her pay was less than that of a just-hired 17-year-old boy, the manager said: "You don't have the right equipment. You aren't male, so you can't expect to be paid the same."
  • A male department manager told a female employee that male employees will always make more because "God made Adam first, so women would always be second to men". 
  • A store manager told Christine Kwapnoski that he gave a male associate a larger raise because he had a "family to support". Kwapnoski says this was a common refrain from Wal-Mart managers. She was also told that she needed to "doll-up" and "blow the cobwebs" off her make-up.        
  • Betty Dukes, a 61-year-old greeter at a Wal-Mart store in Pittsburgh, CA, joined the company in 1994 as a part-time cashier making $5 an hour. She says the company failed to give her more responsibilities, training, and promotions on repeated occasions because she's a woman. After joining the lawsuit, she found out that two men, who had been hired long after she was, were paid more as greeters. In 2003, after nine years of employment at Wal-Mart, Dukes was earning just $8.44 an hour. 

If you happen to be female and not discriminated against, however, it didn’t matter.  You were included irrespective of your knowledge or consent.  A class of 1.6 million against a major corporation is more attractive to plaintiffs’ attorneys than 120 individual lawsuits, after all. 

And this was Dukes’ undoing.  The demonstrable first-hand accounts became anecdotal, because plaintiffs’ attorneys now had to demonstrate that Wal-Mart had a companywide discriminatory policy.  That’s 3,400 stores in all corners and subcultures of the United States. 

 Statisticians pointed out that fewer women were promoted, and that as of as of 2006, women made up more than 70 percent of Wal-Mart’s hourly employees, but fewer than 1/3 held managerial positions.  Justice Ruth Bader Ginsberg noted this in her dissenting opinion.  But the question before the Court was whether the women “had suffered a single wrong that allowed them to sue Wal-Mart as a block.”  This would be a hard sell, because many if not most of the company’s personnel procedures were decided locally and regionally, not at their corporate headquarters in the Midwest. 

With a class of this size, determining why male-to-female ratio is so skewed is nearly impossible, let alone trying to defend against it.  There are likely many reasons, and arguably some which might be independent of gender-based discrimination.  And then there’s the irony of women who may not have experienced gender-based discrimination and are promoted at Wal-Mart, infrequent but in existence, who are included in the class nonetheless. 

The Economist also pointed out the following:

More surprising than the ruling on this question was the 9-0 ruling on another procedural point. The plaintiffs sued under a rule designed to give an entire class “injunctive relief,” i.e., an order that the defendant stop bad behavior. They also asked for back pay under that rule, which they may do only if the back pay is “incidental.” All nine judges agreed that this rule, intended to strike down discriminatory policies, was inappropriate to determine more than a million different pay claims. They said that the women must instead try for class status under a more restrictive rule that requires the issues binding the class not just be common, but that their commonality predominate, alongside other restrictive conditions. The plaintiffs offered a “trial by formula” in which a selection of plaintiffs would have their cases heard, and the results applied to the class. The court ruled unanimously that this would deprive Wal-Mart of defenses in individual cases that it was entitled to.

As a result of the Court’s ruling, we’re likely to see fewer far-reaching class action lawsuits, with a judicial preference for smaller and more specific evidence-based claims.  One size doesn’t fit all. 

All the more reason for individuals – not the trial lawyers – to stand up and be counted. 

Tuesday, June 21, 2011

A-4135 Introduced in the Assembly

As we know, New Jersey is a class action lawsuit magnet.  A piece of legislation introduced by Assemblymen Gary Chiusano and John Wisniewski, however, would bring more fairness to the process. 

Imagine the following scenario: A New Jersey-based business becomes entangled in a product liability lawsuit.  The plaintiff’s attorneys decide to file suit on behalf of everyone who bought a particular product, whether they were injured or not, and oftentimes without their knowledge.  The judge certifies the group of unidentified consumers as a class, and a class-action lawsuit ensues, over defense objections to the certification.  In our scenario, our business needs to go through the entire trial before it can appeal the judge’s determination of a class. 

The legislation introduced by Assemblymen Chiusano and Wisniewski, however, would grant an immediate right to interlocutory appeal.  In reality, a class certification usually means the end of the road for New Jersey civil defendants, because trying such cases is simply too expensive and burdensome.  Many settle even if there is an error in certifying the class.  A-4135 spares all parties time and expense. 

Thursday, June 16, 2011

The Big Apple Needs Big Reform

A lot of tort reform –inspiring activity has been taking place across in New York these days. 

First, there is judge-directed negotiation, an approach to resolving medical malpractice cases without the years of traditional legal overhead.  As part of President Obama’s pledge to address skyrocketing medical malpractice litigation costs, New York City received a federal grant for a type of mediation between a trained judge and attorneys for each side.  Its intent is to get judges involved earlier and actively encourage settlements, which prompts quicker resolution and fewer years in an expensive limbo for the parties involved.  There are no appeals, and the settlements are often a shadow of what a plaintiff might receive in court.  A positive consequence is that lawyers may become more hesitant to pursue a case that is marginal.  A negative consequence, however, is that doctors may still feel pressured to settle, even when they haven’t been negligent. 

Next, the New York State Assembly passed A-694, a complex piece of legislation supported by trial lawyers.  It seeks to overturn the New York Court of Appeals’ decision in the case of Arons v. Jutkowitz. If enacted, opponents say, the cost of medical malpractice insurance will likely increase for New York’s physicians.   More information about the legislation can be found here

The last is sobering.  New York City doled out an astounding $521 million in personal injury and property damage lawsuits in 2010.  It’s sort of like a $57.88 lawsuit insurance policy for each of the city’s 9 million residents.  And this figure is seven percent lower than it was in 2009!

Tuesday, June 14, 2011

NJ Supreme Court Update

In case you missed it, Edwin Stern, who was temporarily appointed to the New Jersey Supreme Court by Chief Justice Stuart Rabner following the Justice Wallace controversy, retired last week after reaching the mandatory retirement age of 70. 

Justice Rabner has temporarily appointed Judge Dorothea O’C Wefing from the Appellate Division to serve on state’s the high court. 

Monday, June 13, 2011

Scam exposed: plaintiff hired a lawyer before buying product!

We already know that New Jersey is infamous for its abuse of the Consumer Fraud Act.  The one where a plaintiff doesn’t have to actually be defrauded in order to collect damages, lets attorney’s fees inflate nearly unchecked, and feeds the ‘litigation tourism’ industry by default.  Yes, that infamy. 

Fortunately, civil justice seems to have come down against trial lawyers in one case.  A federal court in New Jersey recently denied class action status for anyone who purchased “all natural” Arizona Iced Tea without realizing that it had high fructose corn syrup.  The problem, according to a report in Forbes Magazine, is that plaintiff Lauren Cole consulted with an attorney before purchasing the product.  And when you’re trying to seek class certification on behalf of a bottomless number of people, it helps to have at least one person file a claim. 


Excerpt, pages 3 – 4 of the decision:

The factual and procedural record in this case is confused on at least one key question: whether Plaintiff’s qualifying purchase occurred before or after she concluded that Arizona beverages containing HFCS were not natural as labeled…

…During the course of discovery of this case, Plaintiff produced for Defendants a retainer agreement she signed in anticipation of this lawsuit. (Donovan Decl. Ex. C.)  In the agreement, Michael Halbfish, Esq., one of Ms. Coyle’s current attorneys in this litigation, agreed to represent Ms. Coyle in an anticipated class action seeking damages and injunctive relief against the Defendants in this matter for their deceptive

practices in marketing beverages containing HFCS as “all natural.” (Id. ¶ 1.2.)  The agreement was signed on August 9, 2007, more than seven months before Plaintiff has alleged that she was misled by defendants’ “all natural” labeling in her purchase on March 30, 2008.  (Id. ¶ 10.1.)

Thursday, June 09, 2011

Preemptively speaking, North Carolina is off to a good start

North Carolina’s legislature is advancing legislation, House Bill 542, which would protect drug makers from product liability lawsuits if the drug has received FDA approval (unless fraud or bribery was involved).  Consumers can file a suit if they can prove that a particular drug was unsafe or ineffective. 

Preemption, which is the notion that FDA approval of a drug supersedes state law claims regarding safety, efficacy, and labeling, is the legislation’s primary focus.  It is also supported by the North Carolina Medical Society, which breaks down the bill’s remaining provisions:

  • Codifying standards for expert witnesses (other than experts on the standard of care in medical malpractice actions, to which special rules apply).
  • Creating a rebuttable presumption that drugs approved by the FDA for safety and efficacy, are safe and effective for their approved use. The presumption can only be rebutted by clear and convincing evidence. The rebuttable presumption is not available if the drug manufacturer engaged in specific types of wrongdoing such as: selling the drug after it was ordered removed from the market by the FDA; intentionally withholding or misrepresenting certain material information from the FDA, in violation of a final agency action; or making illegal payments to a government agency official or employee to gain approval of the drug.
  • Establishing a cap ($10,000) on attorney’s fees awarded by the court in small cases (damages under $20,000) when the court finds an insurer unreasonably refused to settle prior to trial.
  • Codifying current law on land possessors’ liability for harm to trespassers. In general, there is no duty of care to trespassers. Exceptions include incidents of intentional harm, harm to trespassing children caused by artificial conditions, and failure to exercise ordinary care upon discovery of helpless trespassers.
  • Requiring that evidence of past medical expenses be limited to the amounts actually paid to satisfy medical bills.

 More information about House Bill 542 can be found on the North Carolina General Assembly’s webpage

Tuesday, June 07, 2011

FOX Segment

NJLRA live: Rayner on FOX News Channel

NJLRA Executive Director Marcus Rayner sat down with Gretchen Carlson to talk about how the New Jersey Supreme Court's decision in Voss v. Tranquilino will impact the Garden State.  

Monday, June 06, 2011

Rayner, live

In case you missed it…

NJLRA's Marcus Rayner was on Fox & Friends this morning with Gretchen Carlson to discuss the New Jersey Supreme Court’s decision in Voss v. Tranquilino and what it means for Garden State businesses and bar patrons.  We’ll post the clip as soon as we get it. 

Friday, June 03, 2011

Public weigh-in on Voss v. Tranquilino

The Asbury Park Press ran a story yesterday about the Supreme Court’s decision in Voss v. Tranquilino, which gave a green light to drunk drivers suing establishments for injuries they sustain while driving drunk (Court: Brick man can sue Tiffany's Bar for over-serving him/ Hopkins).  Here are excerpts of some of my favorite comments as of this morning:


4:43 AM on June 2, 2011

Well that officially just killed that industry ...last call 9;00pm ........



6:49 AM on June 2, 2011

Idiots in THIS state will start driving drunk on purpose hoping to get rich when they sue the bar after..



6:56 AM on June 2, 2011

Sounds like another self serving ruling by our court system. the more we are allowed to sue the more the lawyers make. when is it enough, when are we to be held accountable for our own actions. you want to save the state and the taxpayers some money? hold people responsible for their own actions and do away with these waste of money lawsuits



7:02 AM on June 2, 2011

So give the person a huge amount of money for being stupid. I think the bar should have the right to counter sue. Why should someone lose their business for someone else being irresponsible ?



7:04 AM on June 2, 2011

In Pennsylvania, the voters elect their judges, including their state Supreme Court justices. Sitting judges need to face periodic retention votes in order to keep their job. Funny thing -- you don't see too many Pennsylvania judges acting like legislators (e.g. the Abbott decisions) or otherwise reaching idiotic decisions as they did in the case mentioned in this article.



7:15 AM on June 2, 2011

Are you kidding me? You have one too many drinks, full well knowing it's against the law to drink and drive (you just haven't been caught in the act yet), you go out and then get in to a serious accident (good thing you didn't kill someone else) and then you're going to hold the establishment responsible? That's like saying that I can bring suit against an eating establishment for making me FAT by overfeeding me because I did not have the sense to stop eating. Talk about a litigious society? I thought the idea was to cease with the frivolous lawsuits that are costing the rest of us a fortune.



7:15 AM on June 2, 2011

do we need to go back to prohibation [sp] because humans no longer take blame for any actions or free choices they make?



7:09 AM on June 2, 2011

You have to be kidding me..., this should be like the Son of Sam law where you can not profit from your crimes

Thursday, June 02, 2011

Patterson nomination approved by Senate Judiciary Committee

 Nominee received bipartisan support from Senate Panel

Citing her temperament and diversity of experience, the Senate Judiciary Committee approved the nomination of Anne Patterson to the New Jersey Supreme Court.

Patterson declined to speak in-depth about ongoing matters before the Court, but said she fully appreciated the distinct roles of an activist and a judge. 

"Clearly you have the requisite skills to serve in this position," said Senator Nicholas Scutari (D-Union), who chairs the committee.

Senator Raymond Lesniak (D-Union), who previously cited concerns about the Court's lack of racial diversity, voted against Patterson’s nomination.

Patterson, 52, was originally nominated in May 2010 by Governor Chris Christie to fill the vacancy left by Justice John Wallace, whom he did not renominate for tenure. She was ultimately nominated to fill the anticipated vacancy left by Justice Roberto Rivera-Soto, who announced that he will not seek tenure.

Wednesday, June 01, 2011

NJ Supreme Court finds that intoxicated patrons can sue businesses for injuries they sustain

Last year, Fredrick Voss made headlines for suing a Toms River restaurant for injuries he sustained after crashing his motorcycle while intoxicated.

Today, the Supreme Court ruled in favor of… Voss!  Only Justices Albin and Rivera-Soto dissented. 

Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance (NJLRA), issued the following statement in response to the New Jersey Supreme Court’s decision, in Voss v. Tranquilino, which upheld an appellate court decision to permit persons convicted of a DUI offense to sue restaurants for injuries they cause to themselves:

"The Court today has once again defied the will of the legislature to the detriment of business and common sense in New Jersey.  The legislature sought, in plain language, to bar suits against bars and restaurants by intoxicated patrons under the motor vehicle laws of this state. Today drunk drivers can minimize personal responsibility for their actions and sue the restaurateurs of New Jersey for serving them drinks.

“Common sense tells us that pleading guilty to driving while intoxicated shouldn’t legally transfer responsibility from one party to another.  Adults who choose to break the law and endanger others should not have the ability to use our civil court system to collect monetary damages at the expense of New Jersey’s business community. 

The case stems from a 2006 incident in which Fredrick Voss crashed his motorcycle into a car and injured himself.  His blood alcohol level was nearly two-and-a-half times the legal limit.  He pled guilty to a DWI charge but later filed suit against Tiffany’s Restaurant in Toms River under the Dram Shop Act.   

The Court effectively upheld an appellate court's ruling, which found that an intoxicated motorist can sue a bar or restaurant for their own injuries resulting from being overserved alcohol at that bar or restaurant, even if they plead guilty to a DWI charge.  The Court upheld the notion that the Dram Shop Act (which established this liability for restaurants, though it was typically exercised by those innocently injured) supersedes motor vehicle law in NJ, which holds that drunk drivers may not sue the bar or restaurant.

A copy of the Court’s decision can be found on NJLRA’s website.